[Cite as State v. Jones,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, :

Appellee, : CASE NO. CA2022-04-036

: OPINION - vs - 10/31/2022 :

SCOTT A. JONES, :

Appellant. :

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2018-06-1018

Michael T. Gmoser, Butler County Prosecuting Attorney, and John C. Heinkel, Assistant Prosecuting Attorney, for appellee.

Scott A. Jones, pro se.

PIPER, P.J.

{¶1} Appellant, Scott A. Jones, appeals a decision of the Butler County Court of

Common Pleas denying his petition for postconviction relief. For the reasons set forth

below, we affirm.

{¶2} Jones was indicted on two counts of felonious assault, both with firearm

specifications. In November of 2018, a jury found Jones guilty and the court sentenced him Butler CA2022-04-036

to 11 years in prison.

{¶3} On appeal, this court affirmed Jones' convictions. State v. Jones, 12th Dist.

Butler Nos. CA2019-01-006 and CA2019-01-008,

. In October of 2020, the

Ohio Supreme Court declined discretionary review of Jones' pro se direct appeal. State v.

Jones,

,

. Jones then filed an application for reopening

his appeal which we also denied. State v. Jones, 12th Dist. Butler Nos. CA2019-01-006

and CA2019-01-008 (Jan. 20, 2021) (Entry Denying Application to Reopen Appeal). Jones

later filed an appeal with the Ohio Supreme Court which declined discretionary review of

this court's denial of Jones' application to reopen his appeal. State v. Jones,

,

.

{¶4} On February 4, 2021, Jones filed a petition for postconviction relief with the

trial court. The state filed a motion for summary judgment, and after the court granted an

extension of time, Jones filed a response.

{¶5} On March 16, 2022, the trial court entered a judgment denying Jones' petition

for postconviction relief. It is from this order that Jones appeals, raising a single assignment

of error for our review.

{¶6} Assignment of Error No. 1:

{¶7} THE TRIAL COURT ERRED TO THE PREJUDICE OF PETITIONER-

APPELLANT, SCOTT A. JONES, IN OVERRULING HIS PETITION FOR

POSTCONVICTION RELIEF BY RULING THAT IT WAS UNTIMELY.

{¶8} In his assignment of error, Jones argues that the trial court erred in finding

his petition untimely. Specifically, he asserts that the trial court misread the tolling provision

issued by the Ohio Supreme Court on March 27, 2020. Jones argues that House Bill 197

and the Ohio Supreme Court tolling provision tolled the deadline for his postconviction relief

petition starting March 9, 2020, extending the deadline to file his petition until February 5,

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2021. We disagree.

POSTCONVICTION RELIEF

{¶9} A trial court's decision to grant or deny a postconviction petition will not be

reversed absent an abuse of discretion. State v. Watson, 12th Dist. Butler No. CA 2016-

08-159,

. The standard is deferential, requiring the trial court to

engage in more than mere error in law or judgment.

Instead, it requires us to find that

the trial court's decision was "unreasonable, arbitrary or unconscionable." State v. Perkins,

12th Dist. Clinton No. CA2005-01-002,

.

{¶10} A petition for postconviction relief must be filed no later than 365 days after

the date on which the trial transcript is filed in the court of appeals in the direct appeal, or,

if there is no direct appeal, 365 days after the expiration of the time in which a direct appeal

could have been filed. R.C. 2953.21(A)(2)(a)-(b). Here, Jones' final transcript was filed on

September 16, 2019, making the deadline for Jones to file his petition September 16, 2020.

{¶11} Jones filed his petition on February 4, 2021, well outside the applicable time

frame. However, Ohio's statutory procedure does allow the court to entertain an untimely

postconviction petition in two narrow circumstances. The court may entertain an untimely

petition if the petitioner shows that either (1) he was unavoidably prevented from discovery

of the facts upon which he relied in his petition; or (2) the United States Supreme Court has

recognized a new federal or state right that applies retroactively to persons in the petitioner's

situation and the petitioner asserts a claim based on that right. R.C. 2953.23(A)(1)(a). If

the petitioner can satisfy one of these conditions, he must also show by clear and convincing

evidence that, but for the constitutional error at trial, no reasonable trier of fact would have

found him guilty. R.C. 2953.23(A)(1)(b); Watson,

.

{¶12} Jones' does not allege, much less establish, that one of the exceptions applied

to his petition. Jones does not claim that he was unavoidably prevented from discovering

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facts upon which he relied in his petition, nor does he demonstrate that the United States

Supreme Court has recognized a new right that applies retroactively to his situation.

Instead, Jones argues that his petition was timely because the deadline to file his petition

was tolled by House Bill 197 and the Ohio Supreme Court's tolling order.

EFFECT OF THE TOLLING ORDER

{¶13} On March 9, 2020, Ohio Governor Mike DeWine issued Executive Order

2020-01D and declared a state of emergency in Ohio in response to COVID-19. On March

27, 2020, the Governor signed into law House Bill 197, which immediately tolled all statutes

of limitation, time limitations, and deadlines in the Ohio Revised Code and the Ohio

Administrative Code until the expiration of the executive order or July 30, 2020, whichever

was sooner. The bill stated that "the following that are set to expire between March 9, 2020,

and July 30, 2020, shall be tolled: * * * any other criminal, civil, or administrative time

limitation or deadline under the Revised Code." Am.Sub.H.B.No. 197, Section 22(A).

{¶14} On March 27, 2020, in response to the bill, the Ohio Supreme Court issued a

tolling order stating that the "[t]he time requirements imposed by the rules of the Court and

set to expire during the term of this order shall be tolled." (Emphasis added.) In re Tolling

of Time Requirements Imposed by Rules Promulgated by the Supreme Court & Use of

Tech.,

,

, *1517. The term of the order was set to

apply "retroactively to the date of emergency declared by Executive Order 2020-01D,"

which was March 9, 2020, and was set to "expire on the date the period of emergency ends

or July 30, 2020." Id. at *1516.

{¶15} The language of both House Bill 197 and the Ohio Supreme Court's tolling

order makes clear that the order applied only to time requirements, time limitations, and

deadlines that were set to expire between March 9, 2020, and July 30, 2020. The tolling

order "effectively [froze] time, from March 9 until the expiration of the order. For example,

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if a deadline was set to expire on March 19 (10 days after the effective date of the order),

then the deadline [would] expire 10 days after the end of the emergency period." State v.

Jackson, 2nd Dist. Montgomery No. 29226,

.

{¶16} Jones first argues that the time for filing his petition ran from September 16,

2019, until it was tolled on March 9, 2020, due to the tolling order. He claims that his

deadline started to run again when the order expired on July 30, 2020. However, Jones

also recognizes that "only people with deadlines that would fall between March 9 and July

30, 2020, were to be helped or compensated by the 'Tolling Order' of the Supreme Court."

Even with this recognition, he maintains that he was prejudiced because he did not have

access to the law library for an entire year.

{¶17} Jones states that on April 1, 2020, the Lebanon Correctional Institution closed

its law library indefinitely and placed the institution under "quarantine" in response to the

COVID-19 pandemic. He states that from April 1, 2020, until April 1, 2021, he had no

access to the law library or any legal materials that he needed to perfect his petition.

However, during this time, Jones was able file his petition, as well as several other legal

filings related to his request for the Ohio Supreme Court to review of his appeal, and for this

court to reopen his appeal. Further, Jones did not raise the issue of his access to the law

library in his petition; it was first raised in his motion for an extension of time to respond to

the state's motion for summary judgment, which Jones filed three months after he filed his

petition.

{¶18} It would be concerning, if accurate, for a correctional facility to prevent

inmates from accessing a law library even after the expiration of the Governor's executive

order. However, this does not change the fact that the tolling provision was simply not

applicable to Jones' deadline. Moreover, Jones failed to establish the applicability of an

exception that would allow the trial court to consider his untimely petition. "Appellant's

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failure to satisfy either prong of R.C. 2953.23(A)(1) is fatal to his ability to file a delayed

petition." State v. Gordon, 5th Dist. Stark No. 1997CA0142,

,

*7 (October 14, 1997). The trial court did not abuse its discretion in finding Jones' petition

to be untimely and denying the petition. We note that trial courts should dismiss untimely

postconviction petitions for lack of jurisdiction. Nevertheless, a trial court does not commit

reversible error by denying an untimely postconviction petition when it should have

dismissed the petition for being untimely. State v. Kegley, 3rd Dist. Crawford No. 3-18-03,

; State v. Hatfield, 10th Dist. Franklin No. 07AP-784,

. A trial court does not have jurisdiction over an untimely postconviction relief petition

that does not meet the exceptions set forth in R.C. 2953.23(A)(1). State v. Gibson, 12th

Dist. Warren No. CA2001-11-103,

, ¶ 18. Finding no error in the trial court's

judgment, Jones' assignment of error is hereby overruled.

{¶19} Judgment affirmed.

HENDRICKSON and BYRNE, JJ., concur.

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